1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.254-262 OF 2012

(@ SLP(Crl.) Nos. 1581-1598/2009)

Imtiyaz Ahmad .....Appellant(s)

- Versus -

State of Uttar Pradesh & Ors.....Respondent(s)

O R D E R

GANGULY, J .

Leave granted.

1.Heard learned counsel for the parties,

including the learned Amicus Curiae.

2.In these appeals, this Court is concerned with

a case where orders were passed by the High

Court on several dates after the registration

2

of FIR and on stay order being granted,

investigation, and framing of charges or trial

thereafter in the matter remained pending in

the High Court for a long period of time. The

stay order dated 9.4.03 and several orders

dated 29.4.03, 30.4.03, 10.10.03, 7.5.04,

26.5.05, 19.9.06, 27.9.06, 6.10.06 & 18.12.08

of the High Court passed thereafter have been

impugned in these appeals.

3.The questions which crop up in this case are of

serious magnitude and transcend the immediate

facts in the appeal and are of great national

importance.

4.These appeals are directed against a batch of

interlocutory orders passed by a learned Single

Judge of Allahabad High Court in Criminal Writ

Petition No. 1786/2003 pending before the

learned Judge.

3

5.It appears that by order dated 9.4.2003, the

learned Single Judge admitted the writ petition

filed by respondent Nos. 2 and 3 herein and

also stayed the order dated 7.12.2002 passed by

the Additional Chief Judicial Magistrate,

Gautam Budh Nagar whereby direction had been

given for registration of case against the said

respondents. Thereafter, the matter has been

listed on various days before the High Court

but the matter was getting adjourned. As on the

date of filing of the SLP, the writ petition

had been kept pending for six years.

6.The SLP came up for hearing before this Court

on 8.1.2010. This Court was very greatly

concerned about the manner in which criminal

investigation and trial have been stayed by the

High court and also being aware of the fact

that similar cases are happening in several

High Courts in India wanted a serious

4

consideration of the issues and appointed Mr.

Gopal Subramanium, Senior Advocate (at that

time Solicitor General of India) to assist the

Court as Amicus Curiae.

7.The Court also issued a direction dated

8.1.2010 to the Registrars General/Registrars

of all the High Courts in the country to

furnish a report containing statistics of cases

pending in the respective High Courts in which

the proceedings have been stayed at the stage

of registration of FIR, investigation, framing

of charges and/or trial in exercise of power

under Article 226 of the Constitution or

Sections 482 and/or 397 of the Code of Criminal

Procedure. The report was to deal with the

following types of cases:

a)murder,

b)rape,

c)kidnapping, and

5

d)dacoity.

8.In response to the above direction, most of the

High Courts submitted their reports. Two High

Courts, Sikkim and Himachal Pradesh, reported

that they do not have any such pending criminal

cases of the types mentioned above. The reports

submitted by different High Courts disclosed

that altogether there were large number of such

cases pending. Such pendency of cases was

analyzed by the Amicus Curiae with the valuable

assistance of Dr. Pronab Sen, Secretary and Dr.

G.C. Manna, Deputy Director in the Ministry of

Statistics and Programme Implementation.

9.The important findings arrived at after the

analysis of the data are as under:

6

a)Out of the four categories of cases, murder

cases were found to be the most common type,

accounting for 45% of all the cases.

b)About one-fourth of all the cases pending are

for 2 to 4 years from the date of stay order.

Nearly 8% of the cases are, however, pending

for 6 years or more.

c)In most of the cases in different High

Courts, the duration for which the case is

pending varies from 1 to 4 years. It is seen

that 34 out of 201 cases in Patna High Court

and 33 out of 653 cases in Allahabad High

Court are pending for 8 years or more.

10.About total pendency, in the report dated

12.4.10 filed by the Amicus, the following

position emerges. Table 1 below shows the total

number of cases pending in each High Court and

the percentage share of the total pendency.

7

TABLE 1: TOTAL PENDENCY

High Court Number of criminal cases by type % share

of High

Court in

total

number

of cases

(1)

Murder

(2)

Rape

(3)

Kidnap

ping

(4)

Dacoity

(5)

All

(6) (7)

Allahabad 144 100 341 68 653 28.6

Andhra

Pradesh

46 8 2 4 60 2.6

Bihar 92 36 42 31 201 8.8

Bombay 14 5 4 6 29 1.3

Chhattisgarh 4 0 0 1 5 0.2

Delhi 4 5 2 0 11 0.5

Gauhati 6 5 2 8 21 0.9

Gujarat 56 9 34 16 115 5.0

J & K 4 4 6 0 14 0.6

Jharkhand 18 11 12 0 41 1.8

Karnataka 11 4 4 3 22 1.0

Kerala 12 2 5 1 20 0.9

Kolkata 431 209 21 48 709 31.1

Madhya

Pradesh

10 14 1 5 30 1.3

Madras 0 1 2 0 3 0.1

Orissa 111 40 26 10 187 8.2

8

Punjab &

Haryana

17 9 5 1 32 1.4

Rajasthan 23 11 17 5 56 2.5

Uttarakhand 18 19 24 10 71 3.1

All 1021 492 550 217 2280 100

11.It may be seen that the Hon’ble Calcutta High

Court has the highest percentage share (31.1%)

in total number of cases. It is followed by the

Hon’ble High Courts of Allahabad (28.6%), Patna

(8.8%) and Orissa (8.2%). Thus, these four High

Courts taken together account for 76.9% of all

the pendency.

12.Table 2 gives the distribution of all cases and

the period for which the cases are pending in

each High Court.

TABLE 2: DURATION OF PENDENCY

High Court Duration for which pending

N

il

<6

m

6m–

1y

1-

2y

2-

4y

4-

6y

6-

8y

>8y All

9

(1) (

2

)

(3) (4) (5) (6) (7)(8) (9) (10)

Allahabad 1 38 126 19

0

158 90 17 33 653

Andhra

Pradesh

0 16 16 17 11 0 0 0 60

Bihar 7

0

14 11 33 27 8 4 34 201

Bombay 0 1 6 8 6 3 2 3 29

Chhattisgarh 0 1 0 0 0 1 2 1 5

Delhi 0 1 2 4 0 3 1 0 11

Gauhati 0 3 5 4 3 0 6 0 21

Gujarat 0 8 6 34 46 20 1 0 115

J & K 0 5 2 3 4 0 0 0 14

Jharkhand 0 7 4 2 9 3 9 7 41

Karnataka 9 4 3 5 0 1 0 0 22

Kerala 0 1 0 1 5 13 0 0 20

Kolkata 7 40 104 13

5

209 17

6

38 0 709

Madhya

Pradesh

0 2 6 2 12 6 1 1 30

Madras 0 1 0 1 1 0 0 0 3

Orissa 0 9 37 52 60 18 4 7 187

Punjab &

Haryana

0 10 9 4 6 1 1 1 32

Rajasthan 0 8 8 11 22 6 0 1 56

Uttarakhand 0 7 10 9 21 20 3 1 71

All 8

7

176 355 51

5

600 36

9

89 89 2280

10

13.The category wise distribution is as follows:

TABLE 3: CATEGORYWISE DISTRIBUTION

Type of

Case

Duration for which pending

(1) (2) (3)(4) (5)(6)(7) (8) (9)(10)

Nil <6

m

6m–

1y

1-

2y

2-

4y

4-

6y

6-

8y

>8

y

All

Murder 25 65 132 18

2

30

9

211 43 54 102

1

Rape 25 46 83 11

1

12

7

68 21 11 492

Kidnappin

g

16 51 120 15

6

11

6

67 12 12 550

Dacoity 21 14 20 66 48 23 13 12 217

All 87 17

6

355 51

5

60

0

369 89 89 228

0

14.It is clear from the above that out of the four

categories, murder cases account for nearly 45%

of the total pendency. This share increases if

only the oldest pending cases are considered.

Out of the 178 cases pending for 6 years or

more, 97 are murder cases – i.e. a share of

almost 55%.

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15.In that report indications were also given

about the frequency of listing of cases by

different High Courts.

16.On the hypothesis that if a case is listed

frequently, it indicated that the matter was

being actively considered by the High court,

data was also called for on the number of times

the case was listed after the grant of the stay

order.

17.The following table gives the average number of

times a matter was listed for hearing after the

grant of stay order.

High Court Total number of cases Average number of times the

matter was listed per case

Allahabad 653 4.0

Andhra Pradesh 60 3.4

Bihar 201 21.7

Bombay 29 5.1

Chhattisgarh 5 4.3

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Delhi 11 12.2

Gauhati 21 17.0

Gujarat 115 13.4

J & K 14 7.7

Jharkhand 41 3.5

Karnataka 22 5.0

Kerala 20 11.4

Kolkata 709 N/A

Madhya Pradesh 30 3.0

Madras 3 2.3

Orissa 187 5.8

Punjab &

Haryana

32 8.8

Rajasthan 56 7.9

Uttarakhand 71 3.1

All 2280 6.1

18.However, the above analysis was not pursued any

further, since there was no way of ascertaining

which of the hearings were effective and which

were non-effective. Hence, it could be

misleading to draw any conclusions from this

data.

13

19.On the basis of the aforesaid data it is clear

that problems which the administration of

justice faces today is of serious dimensions.

Pendency is merely a localized problem, in the

sense that it affects some High Courts far more

than others. As seen above, just four High

Courts in this country amount for 76.9% of the

pendency. This may well be because of various

social, political and economic factors, which

are beyond the scope of the current enquiry by

this Court.

20.It is a matter of serious concern that 41% of

the cases have been pending for 2-4 years, and

8% (approximately 1 out of every 12 cases) have

been pending for more than six years.

21.After considering the first report by the

Amicus, this Court passed the following order

on 3.5.2010:-

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“The suggestions given by the Solicitor

General have been considered. But before

passing any order, we deem it proper to

request learned counsel representing Allahabad

High Court to place before the Court total

number of cases in which power under Article

226 of the Constitution of India or Section

482 of the Code of Criminal Procedure has been

exercised and the proceedings of the criminal

case have been stayed at the stage of

investigation or trial.”

22.Pursuant to the above order, the Allahabad High

Court furnished information of a total of

10,541 cases where power under Article 226 of

the Constitution of India or Section 482 of the

Code of Criminal Procedure has been exercised

and the proceedings of the criminal case have

been stayed at the stage of investigation or

trial. Pursuant to a request of the Amicus

Curiae, the Allahabad High Court also furnished

the above data in electronic form.

23.The data was then analyzed by the Amicus Curiae

with the help of Dr. T.C.A. Anant (the current

Secretary) and Dr. G.C. Manna, Deputy Director

15

General in the Ministry of Statistics and

Programme Implementation. Then a second report

was prepared and placed for the consideration

of this Court.

24.Important findings from the second report are:-

“Out of the data for 10,541 cases received, data

for 10,527 cases could be meaningfully analysed (as

the rest had some missing elements). The important

findings in respect of these are:

(a) As high as 9% of the cases have completed-more

than twenty years since the date of stay order.

(b) Roughly 21 % of the cases have completed more

than ten years.

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(c) Average pendency per case (counted from the

date of stay order till July 26, 2010) works out

to be around 7.4 years.

(d) Charge-sheet was found to be the most

prominent stage where the cases were stayed with

almost 32% of the cases falling under this

category. The next two prominent stages are found

to be "appearance" and "summons", with each

comprising 19% of the total number of cases. (If

"appearance" and "summons" are considered

interchangeable, then they would collectively

account for the maximum of stay orders.”

25.Table below gives the duration for which cases

have been pending since the date of the stay

order:

17

No. of years

passed

Number of

cases

Percentage of cases

0 763 7.2

1 1250 11.9

2 1272 12.1

3 1024 9.7

4-5 2003 19.0

6-7 1125 10.7

8-10 920 8.7

11-15 577 5.5

16-20 648 6.2

21-25 631 6.0

More than 25 314 3.0

All 10527 100.0

26.A perusal of that information reveals that

shockingly thirty-two cases have been pending

for thirty years or more.

27.The data was also analyzed to ascertain the

stage of the proceedings at which stay order

was granted. Table below may be seen:-

18

Stage at which

proceeding

stayed

Number of cases Percentage of cases

Chargesheet 3365 32.0

Appearance 2016 19.2

Summons 1951 18.5

“Further

proceedings

stayed”

563 5.3

Before charge 380 3.6

Trial 330 3.1

Evidence 323 3.1

Complaints 315 3.0

Cognizance 245 2.3

Disposal 237 2.3

Issue of notice 178 1.7

Others 624 5.9

All 10527 100.0

28.As stated in the First Report and Second

Report, the fact-finding exercise directed by

this court has revealed a problem of serious

concern. It is respectfully submitted that it

is simply unacceptable for a case to remain

pending for three decades under any

19

circumstances, and more so when the pendency is

a consequence of the stay proceedings granted

by the High Court.

29.Thereafter, vide Order dated 26.08.2010, this

Court was of the view that the existing

infrastructure in the High Court’s and District

Court’s must be improved and had directed that

a comprehensive exercise should be undertaken

to prepare the system in which all the cases

instituted in the Court are listed for hearing

without undue delay and some arrangement be

made for monitoring of the listing and disposal

of the cases. As a pilot project, the system is

to be first implemented in the Allahabad High

Court.

30.Thereafter, meetings were held between the

officers of NIC, the Ministry of Statistics,

the Allahabad High Court and the Amicus Curiae

20

and efforts were made to develop the

comprehensive system that the Court has

directed. Another Report was filed by the

Amicus Curiae setting out the steps taken by

the Allahabad High Court, the Central

Government and also certain suggestions given

by Dr. G.C. Manna, Director General, Ministry

of Statistics, who had been requested to visit

the High Court to interact with the officials

there to see how a better system of listing and

tracking cases could be developed.

31.Thereafter, vide Orders dated 14.07.2011 and

17.08.2011, this Court again called for status

reports from all the High Courts as to what

steps had been taken specifically in the

context of this case, in order to expeditiously

dispose of matters where proceedings are stayed

at the stage of registration of FIR,

investigation, framing of charges or trial.

21

Status reports were furnished by some of the

High Courts and reports from other High Courts

were awaited.

32.Then, vide Order dated 29.09.2011, this Court

observed that considering the larger issues

which are involved in this case which virtually

have a direct impact on administration of

justice, it was fit and proper to implead the

Central Government in this proceeding.

33.It is submitted that the issues being

considered in this case have far reaching

implications for maintaining of rule of law.

Where investigation/trial is stayed for a long

time, even if the stay is ultimately vacated,

the subsequent investigation/trial may not be

very fruitful for the simple reason, that

evidence may no longer be available. Witnesses

may not be able to recall the events properly,

22

and some may have moved away or even died. Even

the parties to the litigation may not survive.

Unduly long delay has the effect of bringing

about blatant violation of the rule of law and

adverse impact on the common man’s access to

justice. A person’s access to justice is a

guaranteed fundamental right under the

Constitution and particularly Article 21.

Denial of this right undermines public

confidence in the justice delivery system and

incentivises people to look for short-cuts and

other fora where they feel that justice will be

done quicker. In the long run, this also

weakens the justice delivery system and poses a

threat to Rule of Law.

34.It may not be out of place to highlight that

access to justice must not be understood in a

purely quantitative dimension. Access to

justice in an egalitarian democracy must be

23

understood to mean qualitative access to

justice as well. Access to justice is,

therefore, much more than improving an

individual's access to courts, or guaranteeing

representation. It must be defined in terms of

ensuring that legal and judicial outcomes are

just and equitable (See United Nations

Development Programme, Access to Justice -

Practice Note (2004)].

35.The present case discloses the need to

reiterate that 'Access to Justice' is vital for

the Rule of Law, which by implication includes

the right of access to an Independent

Judiciary. It is submitted that the stay of

investigation or trial for significant periods

of time runs counter to the principle of Rule

of Law, wherein the rights and aspirations of

citizens are intertwined with expeditious

conclusion of matters. It is further submitted

24

that delay in conclusion of criminal matters

signifies a restriction on the right of access

to justice itself, thus amounting to a

violation of the citizens' rights under the

Constitution, in particular under Article 21.

36.In a very important address to the Virginia Bar

Association in 1908, William H. Taft observed

that one reason for delay in the lower courts

is the disposition of judges to wait an undue

length of time in the writing of their opinions

or judgments. [See William H. Taft, The Delays

of the Law, Yale Law Journal. Vo1.18. No.1

(Nov., 1908), pp.28-39)]. The Judge should

deliver the judgment immediately upon the close

of the argument. It is almost of as much

importance that the court of first instance

should decide promptly as that it should decide

right. It should be noted that everything which

tends to prolong or delay litigation between

25

individuals, or between individuals and State

or Corporation, is a great advantage for that

litigant who has the longer purse. The man

whose rights are involved in the decision of

the legal proceeding is much prejudiced in a

fight through the courts, if his opponent is

able, by reason of his means, to prolong the

litigation and keep him for years out of what

really belongs to him.

37.Dispatch in the decision making process by

Court is one of the great expectations of the

common man from the judiciary. A sense of

confidence in the Courts is essential to

maintain a fabric of order and liberty for a

free people. Delay in disposal of cases would

destroy that confidence and do incalculable

damage to the society; that people would come

to believe that inefficiency and delay will

drain even a just judgment of its value; that

26

people who had long been exploited in the small

transactions of daily life come to believe that

courts cannot vindicate their legal rights

against fraud and overreaching; that people

would come to believe that the law - in the

larger sense cannot fulfil its primary function

to protect them and their families in their

homes, at their work place and on the public

streets. [See Belekar Memorial Lecture Series,

organized by High Court Bar Association,

Nagpur. Lecture delivered on August 31, 2002]

38.Merely widening the access to justice is not

enough to secure redress to the weaker sections

of the community. Post Independence, it was

evident that litigation in India was getting

costlier and there was agonizing delay in the

process. After the adoption of the Constitution

and creation of a Welfare State, the urgency of

some structural changes in the justice delivery

27

system was obviously a major requirement. In

the 14

th

Report of the Law Commission under the

Chairmanship of the first Attorney General for

India, Shri M.C. Setalvad, it was observed as

under:-

“In so far as a person is unable to

obtain access to a court of law for

having his wrongs redressed…. Justice

becomes unequal and laws which are

meant for his protection fail in

their purpose.”

39.In a very important discourse Roscoe Pound

argued that by responding to the doctrine of

social justice, the concept of justice has

advanced through various stages. [See Roscoe

Pound, Social Justice and Legal Justice

(Address delivered to the Allegheny County Bar

Association, April 5, 1912]. At the first

stage justice was equated with dispute

settlement. At the second stage justice was

equated with maintenance of harmony and order.

In the third stage, justice was equated with

28

individual freedom. Pound argued that a fourth

stage had developed in society, but had not yet

been fully reflected in the courts, and that

was what Pound called 'social justice'. That is

the ideal form of justice where the needs of

the people are satisfied, apart from ensuring

that they have freedom.

40.Despite complicated social realities, it is

submitted that Rule of Law, independence of the

judiciary and access to justice are

conceptually interwoven. All the three bring to

bear upon the quality of aspirations which are

guaranteed under our Constitution. In order to

fulfil the aspiration, it is important that the

system must be a successful legal and judicial

system. This would involve improvement of

better techniques to manage courts more

efficiently, cutting down costs and duration of

proceedings and to ensure that there is no

29

corruption in the judiciary and the

establishment of the judiciary and would also

require regular judicial training and updating.

41.The memorable words of Lord Devlin (as quoted

by D.M. Dharmadhikari, J.) are pertinent to

note:

“... The prestige of the judiciary and

their reputation for stark

impartiality is not at the disposal of

any government; it is an asset that

belongs to the whole nation ... "

[See Justice D.M. Dharmadhikari,

Nature of Judicial Process, (2002) 6

SCC (Jour) 1.

42.Under the principle of the Rule of Law,

adequate protection of the law must be given to

all persons and to give meaning to it, there

must exist an unimpeded right of access to

justice. In the 'Words of Lord Bingham:

“It would seem to be an obvious

implication of the principle that

everyone is bound by and entitled to

the protection of law that people

30

should be able, in the last resort, to

go to court to have their civil rights

and claims determined. An unenforceable

right or claim is a thing of little

value to anyone."

[See Tom Bingham, The Rule of Law, p. 85]

43.The right of access to justice has been

recognised as one of the fundamental and basic

human rights in various international covenants

and charters. [See Article 14(3) of the

International Covenant on Civil and Political

Rights (ICCPR)]

44.The right of access to justice is also

recognised under Article 67 of the Statute of

the International Criminal Court (Rome

Statute).

45.In the context of the European Union, Article

47 of the European Charter on Fundamental

31

Rights provides for the right to an effective

remedy and to fair trial. With respect to the

Council of Europe, the European Convention on

Human Rights and Fundamental Freedoms, Article

6 significantly protects this right to access

justice.

46.The European Court of Human Rights has held

that a broader interpretation must be given to

Article 6(1) of the ECHR laying emphasis on

'right to a fair administration of justice' in

the case of Delcourt v. Belgium.

“…In a democratic society within the meaning

of the Convention, the right to a fair

administration of justice hold such a

prominent place that a restrictive

interpretation of Article 6(1) would not

correspond to the aim and purpose of that

provision."

[See [1970] ECHR 1.]

47.Article 8 of the Universal Declaration of Human

Rights provides that:

“Everyone has the right to an effective

remedy by the competent national tribunals

32

for acts violating the fundamental rights

granted him by the constitution or by law."

48.Article 16 of the Principles of Freedom from

Arbitrary Arrest and Detention provides that:

“To ensure that no person shall be

denied the possibility of obtaining

provisional release on account of lack

of means, other forms of provisional

release than upon financial security

shall be provided.”

49.The principle of 'Access to Justice or Courts'

is recognized as a right in South Africa’s

Constitution as well:

“Access to Courts.

34. Everyone has the right to have any

dispute that can be resolved by the

application of law decided in a fair

public hearing before a court or, where

appropriate, another independent and

impartial tribunal or forum."

50.The learned Amicus urged that having regard to

the paramount importance of the right to

access, the Court which he argues is a basic

fundamental right specially the Central

Government and the State Governments have a

33

duty to ensure speedy disposal of cases for

proper maintenance of rule of law and for

sustaining peoples’ faith in the judicial

system. He further argued that with the

present infrastructure it is not possible for

Courts, whether it is District Courts or the

State High Courts or this Court to effectively

dispose of cases by just and fair orders within

a reasonable timeframe. The learned Amicus

also urged that the problem is huge and the

considerations are momentous. To understand

the magnitude of the problem, the Government

must appoint a permanent commission to make

continuous recommendation on measures which are

necessary to streamline the existing justice

delivery system. In support of his submission,

he referred to the Report of Lord Woolf

submitted to Lord Chancellor in England:

“…It will not only assist in

streamlining and improving our existing

systems and process; it is also likely,

in due course, itself to be a catalyst

for radical change as well…”

34

[Final Report to the Lord Chancellor

on the Civil Justice System in England

and Wales (Lord Woolf’s Report), 1996,

Chapter 21, para 1]

51.The learned Amicus submitted that this huge

pendency of cases operates as a burden on the

mindset of a Judge. He submitted rightly that

the inner charter of the judge is constantly

under a pressure to somehow decide the case and

the quality of justice suffers. Therefore,

according to him, it is the constitutional duty

of both the Central Government and the State

Government to provide adequate infrastructure

to the judiciary and only an independent

commission which functions on a permanent basis

can assess the necessity of the required

infrastructure and make recommendations to the

Government for providing necessary steps which

the Government should take to make the

Constitutional promise of justice a reality.

The learned Amicus developed his argument by

referring to various decisions of this Court

35

and also various provisions of the

Constitution. He further submitted that the

plea of the Government that in view of

financial crunch it cannot provide the

necessary infrastructure cannot be countenanced

by this Court and in support of the said

submission he referred to the decision of this

Court in the case of R. Ramachandra Rav v.

State of Karnataka , reported in (2002) 4 SCC

578. The relevant observations made in the

said judgment are as follows:-

“…The law does not permit any

government to deprive its citizens of

constitutional rights on a plea of

poverty or administrative inability…”

52.As the Central Government has been impleaded in

this proceeding it was represented by Mr. Harin

P. Raval, the learned ASG.

53.The learned ASG very fairly submitted that the

questions debated in this case, by and large,

36

are not adversarial. The learned ASG submitted

that the Government also accepts that right of

access to Court is a fundamental and

constitutional right. The learned ASG also

accepted that if right to access justice is

denied to the citizens then most of the rights

given under the Constitution virtually become a

rope of sand. The learned ASG submitted that

the Government is aware of the importance of

these rights and are taking several steps to

make these rights vibrant. In the counter

affidavit, which has been filed by the Under

Secretary, Ministry of Law and Justice dated

9.1.2012 several steps which have been taken by

the Government to ensure speedy justice and to

reduce delay are as follows:-

I.Appointment of Court Managers in High Courts

and Sub-ordinate Courts.

II.Vision Statement and Action Plan adopted by

the National Consultation for Strengthening

the Judiciary towards Reducing Pendency and

Delays.

37

III.To prepare National Arrear Grid

IV.National Mission for Justice Delivery and Legal

Reforms.

V.National and State Legal Service Authorities

constituted under Legal Service Authorities

Act, 1987.

VI.National Court Management System (as proposed by

Hon’ble Chief Justice of India).

54.The learned ASG referred to the agenda notes

and the minutes of the meeting of the Advisory

Council of the National Commission for Justice

Delivery and Legal Reforms. He submitted that

the National Mission spanning from 2011 to 2016

would focus on two major goals envisaged in the

Vision document, namely, (i) increasing access

by reducing delays and arrears in the system,

and (ii) enhancing accountability through

structural changes and by setting performance

standards and capacities.

38

55.It was also pointed out that the tentative

action plan covers five strategic initiatives

and one of them is improving infrastructure of

the District and Subordinate Courts and

creation of special and additional courts like

morning and evening courts etc. He referred to

various pages of the Meeting of the Advisory

Council of the National Mission held on

18.10.2011 in Vigyan Bhawan, New Delhi to show

that the Government is aware of the problem and

is seeking to address the same. However, in

the course of his arguments the learned ASG

took the leave of this Court and filed another

affidavit dated 18.1.2012 by Dr. S.S. Chahar,

Joint Secretary and Legal Advisor, Ministry of

Law and Justice.

56.By filing the said affidavit the learned ASG

wanted to urge before this Court that even

though the Government is aware of the urgency

of the problem and the immediate necessity of

39

addressing it, Government is not willing to

accept the suggestion of the learned Amicus for

setting-up of a permanent commission for the

purposes suggested by the learned Amicus.

57.The learned ASG on the other hand

submitted in view of the stand taken

by the Central Government in its

affidavit dated 18.1.2012 that the

existing terms of reference of the

19

th

Law Commission are wide enough to

include within its ambit the question

of setting up additional courts for

the purpose of tackling the arrears

so that access to justice is ensured.

In this connection, he referred to

the terms of reference of the 19

th

Law

Commission. The said terms of

reference are as follows:-

40

“A. Review/Repeal of obsolete laws:

i. To identify laws which are no longer

needed or relevant and can be immediately

repealed.

ii. To identify laws which are in harmony

with the existing climate of economic

liberalization which need no change.

iii. To identify laws which require changes

or amendments and to make suggestions for

their amendment.

iv. To consider in a wider perspective the

suggestions for revision/amendment given by

Expert Groups in various

Ministries/Departments with a view to

coordinating and harmonizing them.

v. To consider references made to it by

Ministries/Departments in respect of

legislation having bearing on the working of

more than one Ministry/Department.

vi. To suggest suitable measures for quick

redressal of citizens grievances, in the

field of law.

B. Law and Poverty

i. To examine the Law which affect the

poor and carry out post-audit for socio-

economic legislation.

ii. To take all such measures as may be

necessary to harness law and the legal

process in the service of the poor.

C. To keep under review the system of

judicial administration to ensure that it is

41

responsive to the reasonable demands of the

times and in particular to secure: -

i. Elimination of delays, speedy clearance

of arrears and reduction in costs so as to

secure quick and economical disposal of

cases without affecting the cardinal

principle that decisions should be just and

fair.

ii. Simplification of procedure to reduce

and eliminate technicalities and devices for

delay so that it operates not as an end in

itself but as a means of achieving justice.

iii. Improvement of standards of all

concerned with the administration of

justice.

D. To examine the existing laws in the

light of Directive Principles of State

Policy and to suggest ways of improvement

and reform and also to suggest such

legislation as might be necessary to

implement the Directive Principles and to

attain the objective set out in the Preamble

to the Constitution.

E. To examine the existing laws with a view

to promoting gender equality and suggesting

amendments thereto.

F. To revise the Central Acts of General

Importance so as to simplify them and to

remove anomalies, ambiguities and

inequities.

G. To recommend to the Government

measure for bringing the statute book up-to-

date by repealing obsolete laws and

42

enactments or parts thereof which have

outlived their utility.

H.To consider and to convey to the

Government its views on any subject relating

to law and judicial administration that may

be referred to it by the Government through

Ministry of Law and Justice (Department of

Legal Affairs).

I.To consider the requests for providing

research to any foreign countries as may be

referred to it by the Government through

Ministry of Law and Justice (Department of

Legal Affairs).

J. To examine the impact of globalization

on food security, unemployment and recommend

measures for the protection of the interests

of the marginalized.

The Commission shall devote, its time bound

attention to all issues relating to item (A)

of the terms of reference as indicated

above, viz., review/repeal of obsolete laws

and shall make its recommendations to

Government for repeal of obsolete laws and

for appropriate amendments in others as may

be found necessary ON TOP PRIORITY basis.

The Commission shall submit its reports in

Hindi and English with sufficient number of

copies for being placed on Tables of both

houses of Parliament. The Law Commission

shall also make its reports available

through website or otherwise as soon as

reports are submitted to the Government.

Various Law Commissions have given about 234

Reports so far. Many of them are made

43

available on the website of Law Commission.

Since many of the Reports are voluminous it

will be difficult for researchers to read

entire Report online. To facilitate the

researchers to choose the topics of their

area and to create awareness amongst Judges,

Lawyers, Law Teachers and Students on the

various recommendations of the Law

Commission, a brief summary of all the

Reports of the Law Commission shall be made

available by the Law Commission, online.”

58.The learned ASG submitted that in view of

Clause ‘H’ of the terms of reference of the 19

th

Law Commission, the present Law Commission can

go into the question of making a proper

research and a scientific and empirical study

to assess the requirement of setting up

additional courts and making available

additional infrastructures for ensuring free

access to court and speedier disposal of cases.

The learned ASG submitted that the pendency of

cases cannot be tackled by only setting up

additional courts. Various other factors are

also involved including the cooperation of the

44

members of the Bar, the quality of legal

education, policy of legislation, recruitment

of quality manpower and such other issues which

the Law Commission should urgently address and

make recommendations on.

59.The learned ASG also submitted that having

regard to the provision of Article 235 of the

Constitution the control over district and

subordinate courts rests with the respective

High Courts in each State. In assessing the

requirement of setting up of additional courts

and creating additional benches, the opinion of

the High Court and the State Government have to

be ascertained including the question of budget

allocation to each State Government. The

learned ASG also submitted that since the

Government is keenly interested to address

these problems it is open to any suggestion. It

was submitted that any direction from this

45

Court will help the Government and the Law

Commission to tackle this problem in a very

effective way.

60.The Court, upon a detailed and very anxious

consideration of the aforesaid issues and

specially huge pendency of arrears in different

High Courts and considering the stand of the

Central Government in its affidavit dated

18.1.2012 is giving the following directions.

I.Certain directions are given to the High

Courts for better maintenance of the Rule of Law

and better administration of justice:

While analyzing the data in aggregated form, this

Court cannot overlook the most important factor

in the administration of justice. The authority

of the High Court to order stay of investigation

pursuant to lodging of FIR, or trial in deserving

cases is unquestionable. But this Court is of the

46

view that the exercise of this authority carries

with it the responsibility to expeditiously

dispose of the case. The power to grant stay of

investigation and trial is a very extraordinary

power given to High Courts and the same power is

to be exercised sparingly only to prevent an

abuse of the process and to promote the ends of

justice. It is therefore clear that:

(i) such an extraordinary power has to be

exercised with due caution and circumspection.

(ii) Once such a power is exercised, High Court

should not lose sight of the case where it has

exercised its extraordinary power of staying

investigation and trial.

(iii) High Court should make it a point of

finally disposing of such proceedings as early as

possible but preferably within six months from

the date the stay order is issued.

47

61.It is true that this Court has no power of

superintendence over High Court as the High

Court has over District Courts under Article

227 of the Constitution. Like this Court, High

Court is equally a Superior Court of Record

with plenary jurisdiction. Under our

Constitution High Court is not a Court

subordinate to this Court. This Court, however,

enjoys appellate powers over High Court as also

some other incidental powers. But as the last

court and in exercise of this Court’s power to

do complete justice which includes within it

the power to improve the administration of

justice in public interest, this Court gives

the aforesaid guidelines for sustaining common

man’s faith in the rule of law and the justice

delivery system, both being inextricably

linked.

48

II.Certain directions are also given to the Law

Commission which are as follows:

a)Since the Law Commission itself is seized

with the problem and is making investigation

having regard to its terms of reference

specially clause ‘H’, thereof, this Court

requests the Law Commission, which is headed

by a distinguished retired judge of this

Court, to undertake an enquiry and submit its

recommendation in relation to the following

matters:-

I.Keeping in view that timely justice is an

important facet to access to justice, the

immediate measures that need to be taken

by way of creation of additional courts

and other allied matters (including a

rational and scientific definition of

"arrears" and delay, of which continued

notice needs to be taken), to help in

elimination of delays, speedy clearance

of arrears and reduction in costs. It is

trite to add that the qualitative

component of justice must not be lowered

or compromised; and

II.Specific recommendations whenever

considered necessary on the above aspects

in relation to each State be made as a

product of consultative processes

49

involving the High Courts and other stake

holders, including the Bar.

b)In doing so, the Commission may take such

assistance from the Central Government and

the State Governments as it thinks fit and

proper.

c)Accordingly, it is directed that on the

Commission’s request for assistance both the

Central Government and the State Governments

shall render all possible assistance to the

Commission to enable it to discharge its

functions, as directed by this Court in its

order. The Commission shall at the discretion

of its Chairman be free to co-opt purposes of

the enquiry to be undertaken by it. Such

legal & technical, experts as may be

considered necessary by it for an effective

and early completion of the assignment hereby

made.

50

d)The Commission is requested to submit its

report within six months from the date of

this order.

e)Such recommendations be sent to the Registrar

General of this Court in sealed covers.

62.The matter may appear before the appropriate

Bench after being nominated by the Hon’ble the

Chief Justice on the 7

th

August, 2012 for

further consideration by this Court of the

recommendations by the Law Commission and if

necessary for further directions to be passed

in these appeals.

......................J.

(ASOK KUMAR GANGULY)

...................J.

New Delhi (T.S. THAKUR)

February 1, 2012

51

REPORTABLE- 62/2012 SECTION-II

SUPREME COURT OF INDIA

No. F. 3/Ed. B. J./17/2012

New Delhi.

Dated: 03.03.2012

CORRIGENDUM

IN

CRIMINAL APPEAL NO(s). 254-262 of 2012

(Judgment dated FEBRUARY 01, 2012)

Imtiyaz Ahamd ....Appellant

Versus

State of Uttar Pradesh & Ors. ….Respondents

BRANCH OFFICER

EDITORIAL BRANCH

PARA FOR READ

34 inequitable equitable